Unlawful Presence of Protected Persons in Occupied Territory? An Analysis of Israel’s Permit Regime and Expulsions from the West Bank under the Law of Occupation

Abstract

During more than forty years of occupation, Israel, the Occupying Power, has sporadically expelled Palestinian individuals from the Occupied Palestinian Territory. Whilst this was protested against as unlawful by human rights defenders, the practice was upheld by the Israeli High Court on security grounds. Recently, cases of expulsions from the West Bank have become more frequent and they are no longer based on security considerations. The Israeli policy of expulsions has further been formalised through military legislation. Now, every person in the West Bank whose registered address in the Palestinian Population Registry is not in the West Bank must hold a permit in order to stay in the occupied territory. In the absence of such a permit, an individual is considered infiltrator and subject to prosecution and expulsion. Ten of thousands of Palestinians whose registered address is in the Gaza Strip and which have been prevented by Israel from changing their address are currently exposed to expulsion from the West Bank to Gaza. This article analyses the Israeli policy under international humanitarian law, mainly under the law of occupation. It explores the prohibition on forcible transfers and deportations from occupied territory as well as its implementation by the Israeli High Court. It further discusses core issues such as the definition of protected persons in the Fourth Geneva Convention, their right to live and reside in the occupied territory and the powers granted to the Military Commander in occupied territory.KeywordsIsraelOccupied Palestinian territoryOccupationDeportationsForcible transfersProtected personsArticle 49Fourth Geneva conventionArticle 43Hague regulationsCustomary IHL